With all the talk of the semantics of the collective bargaining between the NHL and the NHL Player’s Association, there is one aspect of this whole mess that is lost in the analysis. We can approach it with a simple question.
The question: is this lockout legal?
The simple answer: yes.
The NHL is located in multiple states, which means that anything labor related would be handled on a federal level. While it may seem like a bad idea, a lockout of workers by an employer is legal in the United States. But before you sigh and decide that the situation is hopeless, keep reading.
In defiantly stating on Thursday that the league and owners will not come back to the table to talk unless the union makes the next move, commissioner Gary Bettman could be seen as refusing to negotiate. This is where it might become a problem.
The following are Section 8(a)(5) and Section 9(a) of the National Labor Relations Act:
Sec. 8. [§ 158.] (a) It shall be an unfair labor practice for an employer—
(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a) [section 159(a) of this title].
Sec. 9 [§ 159.] (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment
It might be a stretch to say that Bettman’s comment was an outright refusal, but he did imply that there would be no independent action on the league’s part without movement from the union. Even the failure to schedule further negotiations could be taken as the league saying “We refuse to do anything unless and until the other side makes a move.” That could be an indirect refusal.
While it’s subjective as to whether Bettman actually violated the law, he has surely violated the spirit of the law in terms of its definition of collective bargaining, found in Section 8(d):
(d) [Obligation to bargain collectively] For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment
Fans would be hard pressed to say that announcing the intent to lock out before the union even presents its first counterproposal would be acting “in good faith”. In fact, it could be said that such an announcement means any meetings after that were not conferred in good faith on the league’s part.
What would the punishment for a violation be? Findlaw.com answers this:
Should the NLRB [National Labor Relations Board] determine a failure to bargain in good faith, it will issue a cease and desist order and an affirmative order directing the employer to resume bargaining—in good faith. The NLRB also may order an employer to supply information, such as revenue and costs, to the union during the collective bargaining process. In cases where an employer has terminated or altered its operation without negotiating with the union, the NLRB has ordered back pay, consistent with the same compensation provisions under sections 8(a)(3) and 8(a)(4), for the affected employees.
If the NLRB finds flagrant or egregious violations in any of the above-referenced sections, it can order extraordinary remedies. Such remedies may include requiring the employer to mail the NLRB’s orders directly to each employee’s home or granting the union access to the employer’s premises to post notices or meet with employees on non-work time—none of which is normally required. The NLRB also can require the employer to pay litigation costs, attorney’s fees and union expenses.
In this case, “terminating or altering is operation without negotiating” would mean canceling the season without at least attempting to meet with the union.
We already know that the union is not recognized in Quebec, which means a lockout could be deemed illegal. If Bettman were made aware that he has possibly violated federal labor law in the United States, he might be compelled to end the lockout.
Let’s not hold our breath waiting for that to happen.
Krista Golden has an Associate of Arts in Justice Studies from Kent State University’s East Liverpool campus and is working toward her bachelor in the major. Her interest in researching and interpreting state and federal code led her to investigate this angle of the CBA talks.